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Child abduction returns trumped by asylum claims

Date:25 SEP 2017
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David Hodson, Marianna Michaelides and Lauren Bovington
The International Family Law Group LLP

What happens when a parent, who has abducted a child to this country and would be ordered to return the child immediately under the 1980 Hague Convention, claims asylum for themself and the child? Which takes precedence? The English High Court has just dealt with this issue.

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For years now, the growing international movement of children has resulted in many cases of relocation, abduction and wardship. Nevertheless, until recently the interplay between asylum and the wrongful removal or retention of children had not been considered. The problem is the conflict of two major international conventions; the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1951 Geneva Convention relating to the status of refugees.

In August, Mr Justice Mostyn determined the first ever 1980 Hague Case to involve a pending asylum claim. Even earlier this year, the Court of Appeal handed down a leading judgment in wardship proceedings in which there was a granted right of asylum. The impact of both cases led to the same conclusion. The asylum claims act as a bar to a child’s immediate return.

While recent for the courts of England and Wales it had been previously addressed by courts in the USA and Canada. The conflicting provisions of international laws meant that the summary nature of immediate return under the 1980 Hague was facing off against the principle that prohibits a return while an asylum application is pending. The USA and Canada have come to different conclusions to England & Wales.

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International Movement of Children
International Movement of Children
Deals with both lawful movement and abduction of...
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International Family Law Journal
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English High Court under 1980 Hague Convention

The situation arose for the first time, in England and Wales, in the context of the 1980 Hague Convention in the case of FE v YE [2017] EWHC 2165 (Fam) in which our firm, The International Family Law Group LLP, acted for the father. The mother travelled from Israel to Thailand for a holiday with the children, and instead of returning as planned in July 2016 they travelled to England where they were later located. The mother applied for asylum for herself upon her arrival in the UK. It was not until somewhat later that she then applied for asylum on behalf of the children in their own right.  The Home Secretary intervened.

At the commencement of the final hearing, the mother’s applications for asylum had been initially rejected but was in the process of appeal to the First Tier Tribunal. Mostyn J pointed out that the appeal routes were extensive and would be by no means a short process.  The next appeal was the Upper Tribunal, thereafter lay the Court of Appeal and Supreme Court, very many months or longer ahead.  Yet 1980 Hague and Brussels II contemplate a 6-week timetable. 

Mostyn J expressed a firm view, on the authority of Article 20 1980 Hague Convention, at paragraph 17 of his judgment that:

'I have no hesitation in concluding that  where a grant of asylum has been made by the Home Secretary it is impossible  for the court later to order a return of the subject child under the 1980 Hague  Convention. Equally, it is impossible for a return order to be made while an  asylum claim is pending.' 

Faced with a pending application for asylum Mostyn J concluded that he was not prevented from proceeding with the Hague matter and determining the substance of the mother’s defences but he could not order the return while the asylum applications were pending. He proceeded to deal with the mother’s defences, finding her credibility fatally flawed for various reasons. The mother’s defences to the summary return failed. Mostyn J ordered the return of the children with the order not taking effect until 15 days after the promulgation by the First-tier Tribunal reviewing the mother’s appeal. If the appeal was successful, the order would be stayed. If not, the matter would be remitted to Mostyn J to decide whether the order should be further stayed or implemented.

This Judge deals with the non-jurisdictional facts of the case, especially the mother’s many other strong allegations, in paras 29–36 and rejects her defences, just as the Home Secretary had rejected her allegations at first instance in the asylum claim.

The judgment is relatively short, very clear, covers the background to all the relevant international instruments and is compulsory reading to any practitioner dealing with this asylum issue for international children. It argues sympathetically for the injustice of delayed return of abducted children yet demonstrates the fundamental human rights protections of the asylum laws and procedures properly used. He makes clear he has reverted to 'first principles' in coming to his balanced decision.

The full version of this article will appear in International Family Law Journal 2017, Issue 4. To find out more, click here.